The opinion
J-A21005-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BEVERLY E. BROWN, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
CATHY S. BOYER, ESQUIRE AND BOYER,
PAULISICK & EBERLE,
Appellees No. 206 WDA 2017
Appeal from the Order January 12, 2017
In the Court of Common Pleas of Butler County
Civil Division at No(s): 2014-10798
BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.
DISSENTING MEMORANDUM BY BENDER, P.J.E.: FILED MAY 18, 2018
I respectfully dissent. I would affirm the trial court’s order sustaining
the preliminary objections filed by Cathy S. Boyer, Esq., and Boyer, Paulisick
& Eberle (collectively “Law Firm”) and dismissing Beverly E. Brown’s (“Ms.
Brown”) second amended complaint with prejudice.
As noted by the trial court, Ms. Brown’s legal malpractice complaint
sets forth causes of action for negligence and breach of contract. Law Firm’s
response via their preliminary objections asserts that the complaint fails to
state a claim upon which relief may be granted due to a lack of recoverable
damages, proof of which is a required element for success on either cause of
action. In relation to the damages issue, the trial court explains:
In this case, the damages sought by [Ms. Brown] are
speculative at best. The amount [Ms. Brown] claims in damages
in her Second Amended Complaint is that which she would
J-A21005-17
receive under her ex-husband’s Pension, in the event said
Pension was available to her. However, as previously stated,
[Ms. Brown’s] ex-husband’s Pension would not have been
available to her with or without Attorney Boyer’s advice. That is,
no action or inaction of [Ms. Brown’s] counsel would have
resulted in [Ms. Brown’s] ability to receive her ex-husband’s
Pension in any form. Therefore, it is a remedy that is
unavailable as a matter of law rather than as a result of any
wrongdoing by counsel.
Further, even if armed with the knowledge that her ex-
husband’s Pension Plan did not provide her with a separate
annuity [and] [Ms. Brown] would have negotiated differently, no
change in negotiation tactic would have provided her with a
separate annuity. In fact, [Ms. Brown] did have the opportunity
to continue negotiations well after the acknowledgement of the
mistake on January 24, 2012, and thus a new May 7, 2015,
“Domestic Relations Order” was entered. See Butler County
Family Court Docket No. 2010-90027-D. While this may not
reflect everything [Ms. Brown] desired to receive in the divorce
proceedings, it does represent to this [c]ourt that some measure
of correction was undertaken. Notwithstanding, even if no such
order existed, there is no way to know exactly what [Ms. Brown]
would or would not have foregone, or received in further
negotiations with her ex-husband prior to the January 24, 2012,
QDRO, so that any claim to the contrary would be wholly
speculative.
It is for the same reasons enumerated above that [Ms.
Brown] cannot prove that her claim in the underlying divorce
action was a viable one with respect to the Slippery Rock
Borough Pension Plan. Stated differently, [Ms. Brown] has no
ability to prove her “case within a case,” if only because what
she seeks as damages are not available as a matter of law.
Trial Court Memorandum Opinion (TCMO), 1/12/17, at 4-5. Essentially, the
trial court concluded that “the damages claimed as a result of the [Law
Firm’s] alleged wrongdoings are either speculative at best, or totally
unavailable to [Ms. Brown] as a matter of law, at worst.” Id. at 6.
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I also note that Ms. Brown failed to acknowledge that after the parties
were notified on January 24, 2012, that the QDRO could not be accepted as
a qualified plan, further negotiations were undertaken and a domestic
relations order was entered on May 7, 2015, that specifically related to the
pension plan. That order is not contained in the record of this case. Rather,
it appears that it is listed in the Butler County Family Court Docket relating
to the underlying case. Thus, this Court does not have access to that order
or its contents. The trial court here recognized that although the May 7,
2015 order did not necessarily “reflect everything [Ms. Brown] desired to
receive in the divorce proceedings, it does represent … that some measure
of correction was undertaken.” Id. Essentially, the trial court concluded
that despite the May 7, 2015 order, “there is no way to know exactly what
[Ms. Brown] would or would not have foregone, or received in further
negotiations with her ex-husband prior to the January 24, 2012[] QDRO, so
that any claim to the contrary would be wholly speculative.” Id.
I agree and would conclude that the trial court did not err.
Accordingly, I would affirm the trial court’s order that sustained Law Firm’s
preliminary objections and dismissed Ms. Brown’s second amended
complaint with prejudice.
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